A win for employers: Supreme Court rejects union’s effort to obtain right of consultation in accommodation process

by John Craig and Matthew Larsen

Do unions have an independent legal right, separate and apart from their collective agreement rights, to be involved in every unionized employee’s accommodation request? This question was answered earlier this year by the British Columbia Court of Appeal, which ruled that unions have no such right.

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The erosion of employers’ managerial rights

October 29, 2017 - by: Mikaël Maher 0 COMMENTS

by Mikael Maher

In a recent arbitration case, Tshiuetin Rail Transportation Inc. v. Steelworkers, Local 7065-75, the arbitrator, Bruno Leclerc, and the Superior Court of Quebec challenged a well-established principle in labor relations, which is that an employer retains managerial rights in the absence of limiting provisions in the collective agreement.

In this case, the arbitrator and Superior Court found that the employer had violated the collective agreement although the agreement did not contain a limitation to the employer’s managerial rights in regard to the contested action. Rather, they found that the employer had violated the collective agreement because it did not contain a clear provision that allowed the employer to act as it did. Therefore, the question remains: What is happening to managerial rights, and what measures can employers take to protect these rights?

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Blurred lines: Managers may have right to bargain collectively

February 26, 2017 - by: Valérie Gareau-Dalpé 0 COMMENTS

by Valérie Gareau-Dalpé

In several jurisdictions across Canada, the issue of unionization of managers and supervisors is a thorny one. In many cases, unionization is restricted to “employees,” a definition from which managers are excluded. In the province of Québec, the exclusion is based partly on the potential for conflicts of interest in having managers collectively bargain their own conditions of employment.

In two surprising decisions, the Tribunal administratif du travail of Québec (Tribunal) has questioned the constitutionality of this managerial exclusion under Quebec’s Labour Code. While the decisions stem from an administrative tribunal and have yet to make their way to various appeal processes available through courts, as the case may be, they could have ramifications in other provinces.

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Strangers at the table: Employers may need to accept observers in collective bargaining

December 11, 2016 - by: David McDonald 0 COMMENTS

by David McDonald

In Canada, collective agreements are generally accessible to the public. Canadian jurisdictions provide mechanisms to file collective agreements with government authorities, and it is not uncommon for the union or the employer to post their agreement on the web. However, the process of bargaining itself is private and typically carefully guarded by the parties. This allows for a free flow of information between the parties in order to achieve better negotiations.

In a recent case, a Canadian labor board was faced with a difficult question: What happens when one side tries to bring “observers” to the negotiation table? Surprisingly, the board ruled that observers could have a seat at the table.

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Arbitration awards: a permanent part of an employee file

by Emilie Paquin-Holmested

In Canada, amnesty clauses are commonly found in collective agreements. The purpose of such clauses is to erase disciplinary measures from an employee’s file after a given period, usually between six and 24 months. Therefore, normally employers cannot consider disciplinary measures that predate the amnesty period when determining the appropriate disciplinary measure to be imposed. read more…

Objective medical proof not necessary for accommodation duties to arise

November 10, 2013 - by: Marc Rodrigue 1 COMMENTS

By Marc Rodrigue

Under human rights legislation across the country, Canadian employers have a general duty to accommodate employees who are unable to perform their work for a period of time because of illness or disability to the point of undue hardship.

This may require an employer to grant an employee a leave of absence from the workplace. But what if the employee doesn’t provide medical documentation to justify such an absence; surely you could deny the leave? Not necessarily, according to an Ontario arbitrator in TRW Canada Ltd. and TPEA (Lockhart). read more…

Contracting out union work – comparing cases

September 15, 2013 - by: Brian Smeenk 0 COMMENTS

By Brian P. Smeenk

An interesting series of recent labor tribunal decisions provides lessons about the application of contracting out clauses in union agreements. These cases demonstrate how virtually the same collective agreement requirements can be handled quite differently, with dramatically different outcomes. They also demonstrate that contracting out bargaining unit work in the face of collective agreement restrictions needs to be done in a carefully considered and planned manner. read more…

Court refuses to referee fight regarding plant-closure agreement

July 28, 2013 - by: Marc Rodrigue 0 COMMENTS

By Marc Rodrigue

Unionized employees in Canada can’t bring employment claims to court. This is so even where there is no longer any collective agreement in place. So ruled an Ontario court recently in Baker v. Navistar Canada Inc. read more…

Accommodation of Family Status on Same Footing as Other Human Rights

November 01, 2010 - by: Northern Exposure 0 COMMENTS

by Ralph Nero and Ida Martin

Do parents of young children have the right to refuse a geographic transfer? In the case of three employees at the Canadian National Railway (CNR), the Canadian Human Rights Tribunal (CHRT) has recently answered “yes.”

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Blowing Holes in Collective Agreements

October 04, 2010 - by: Northern Exposure 0 COMMENTS

by Emilie Paquin-Holmested and Dominique Monet

The Supreme Court of Canada, in Québec (Procureur général) c. Syndicat de la fonction publique, recently struck down a clause in a collective agreement. The clause in question prevented certain employees from challenging discipline through grievance arbitration. The Court declared the clause void because it contravened a statutory minimum standard.

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